The Massachusetts Superior Court’s recent decision in Burke v. The General Hospital Corp. et. al., provides critical insight into the limitations of the attorney-client privilege as it applies to investigation reports prepared by counsel.
Dennis Burke, a former employee of Massachusetts General Hospital (MGH), asserted a retaliation claim based on his whistleblowing activity while employed by the hospital. Burke alleged that MGH was double booking surgeries which he considered to be inherently dangerous to patient safety. Prior to the inception of any litigation, MGH retained outside counsel, Donald Stern, to investigate Burke’s allegations, prepare an investigative report, and provide recommendations regarding MGH’s policies and procedures.
During discovery, Burke sought a copy of Stern’s report. Initially the Court ordered that a redacted copy of the report should be produced, with the redactions intended to prevent the disclosure of sections of the report that MGH claimed were privileged. On Burke’s motion for reconsideration, the Superior Court ordered MGH to produce the full, unredacted report, because: (1) Stern and his team were not hired to provide legal advice to MGH; and (2) even if the report had been privileged, the privilege was waived when MGH relied upon and referenced the report in responding to media requests, and disclosed unredacted copies of the report to its outside public relations firm.
The Burke decision provides critical guidance to employers. Many employers have assumed that engaging an attorney to perform an investigation will automatically shield the investigation and any report from discovery. However, the attorney-client privilege only extends to attorney communications that were made for providing legal services. The privilege does not protect information communicated to counsel. An investigation, even when conducted by an attorney engaged to provide business advice or to ascertain facts, does not come within the scope of the attorney-client privilege. Moreover, once the privilege has been waived by sharing the information with a third-party, it cannot be reestablished. Employers should therefore be selective in deciding when, and with whom, to share investigative reports and facts ascertained during the investigation. Unless litigation is reasonably anticipated, or the investigation is being performed by counsel in connection with on-going litigation, the work product doctrine may not shield the disclosure of this information.
Employers performing workplace investigations must be careful to establish, and then protect, the attorney-client privilege. When in doubt, seek advice from your employment counsel prior to commencing an investigation.
